In the media
O'Brien Real Estate Pty Ltd and Jerry Caleca -
Enforceable undertaking
A Croydon estate agency will contribute $45,000 to the Victorian
Consumer Law Fund, after acknowledging contraventions of Victorian
consumer and property laws relating to property sales (making false
or misleading representations about the sale price of a number of
properties) (12 January 2017).
More...
L&L Dardha Real Estate Pty Ltd (trading as Hocking
Stuart Yarraville) - Enforceable undertaking
A Yarraville-based estate agency will contribute $45,000 to the
Victorian Consumer Law Fund, after it acknowledged that the company
contravened sections 18 and 30 of the Australian Consumer
Law (Vic) and underquoting provisions of the Estate Agents
Act 1980. (making false and misleading representations about
the sale of property, knowing the vendors were not likely to sell
the property for the advertised price) (12 January 2017).
More...
Motorists should buy now to avoid petrol price
spikes
ACCC Chairman Rod Sims has urged motorists to shop around now to
find the best deal before price cycles push petrol prices higher.
Along with the falling exchange rate, the OPEC agreements are the
primary reason for increases in wholesale petrol prices over the
past six weeks. The OPEC cartel, continues to cause Australian
motorists to pay much more for petrol than they should (05 January
2017).
More...
Consumer complaints to ACCC top 20,000 in
2016
Complaints about electronics and whitegoods accounted for more than a quarter of the 20,000-plus grievances shoppers submitted to the Australian Competition and Consumer Commission in 2016 (03 January 2017). More...
Valve to pay $3 million in penalties for misrepresenting
gamers' consumer guarantee rights
On 23 December 2016 the Federal Court ordered Valve Corporation to
pay penalties totalling $3 million for breaching the Australian
Consumer Law. The Court held that the terms and conditions in the
Steam subscriber agreements, and Steam's refund policies,
included false or misleading representations about consumers'
rights to obtain a refund for games if they were not of acceptable
quality (03 January 2017).
More...
ACCC closes tertiary admissions centres
investigation
The ACCC has completed its inquiries into alleged anti-competitive
conduct by tertiary admissions centres (TACs) and decided to
discontinue its investigation. The ACCC commenced its investigation
after the Australian National University (ANU) alleged that the
Western Australian Tertiary Institutions Service Centre (TISC) and
the South Australian Tertiary Admissions Centre (SATAC) had both,
independently, refused to supply tertiary admission services to ANU
(03 January 2017).
More...
ACCC releases Statement of Issues on PMP-IPMG print
merger
The ACCC 'has released a
Statement of Issues expressing initial concerns about the
proposed merger between print businesses PMP (ASX:PMP) and
IPMG.' It has indicated that its 'preliminary view is that
the merger may substantially lessen competition in the supply of
heatset web offset printing, the main method for printing
catalogues and magazines' (22 December 2016).
(media release) More....
(merger register) More...
Harrison Telecommunications companies engaged in
unconscionable conduct
The Federal Court found yesterday that corporations trading as
SoleNet and Sure Telecom (the Harrison Companies) engaged in
unconscionable conduct in connection with the supply of
telecommunications services (21 December 2016). More...
Few and far between: Criminal cartel enforcement in
Australia
Despite criminal cartel prosecutions being few and far between in
Australia there has not been any sustained debate about the reasons
for the ACCC's slow start to criminal cartel enforcement.
Contrary to ACCC claims, the reasons for the paucity of criminal
cartel prosecutions since 2009 has been due to three main factors
(17 December 2016). More...
Mind the Gap
The Federal Court of Australia has
found that Woolworths had not engaged in unconscionable conduct
towards its suppliers. This case confirms that
"unconscionability" has a legal meaning that is different
to "unjustified", "unfair" or
"unjust" (noting that the Court did not find that Mind
the Gap was any of these things). It also confirms that an
assessment of unconscionability can only be undertaken by
considering all of the relevant circumstances (16 December 2016).
More...
ACCC will not appeal Woolworths decision
The
ACCC has announced it will not appeal the Federal
Court's decision in the Woolworths case, in which it had
alleged Woolworths engaged in unconscionable conduct in relation to
its 'mind the gap' scheme (16 December 2016).
Nurofen fined $6m for misleading consumers with
'specific pain' range
Nurofen's fine for misleading consumers is raised from $1.7
million to $6 million after a successful appeal by the ACCC.
Earlier this year, the ACCC won its case against pharmaceutical
giant Reckitt Benckiser over the company's "specific
pain" range. The Federal Court found the products were
misleading because they all contained the same active ingredient
and did the same thing (16 December 2016).
More...
ACCC takes action against ABG Pages
The ACCC has instituted proceedings in the Federal Court against
ABG Pages Pty Ltd and an individual, alleging misleading or
deceptive conduct, false or misleading representations, undue
harassment and systemic unconscionable conduct in its dealings with
small businesses, who were actual or potential customers of its
online business directory service (15 December 2016).
More...
Federal Court imposes multi-million dollar penalties on
ANZ and Macquarie Bank for attempted cartel conduct
The proposed penalties were accepted and in addition to cost
orders, Justice Wigney imposed the following penalties: '$9
million against ANZ in respect of its admission that it engaged in
ten instances of attempted cartel conduct in contravention of the
Competition and Consumer Act 2010 (CCA); and $6 million
against Macquarie in respect of its admission that it engaged in
eight instances of attempted cartel conduct in contravention of the
CCA' (14 December 2016).
(ACCC media release) More...
High Court allows ACCC appeal in Flight Centre attempted
price-fixing case
The ACCC has today won a High Court appeal in relation to Flight
Centre's attempt to induce three international airlines to
enter into price-fixing arrangements between 2005 and 2009 in
relation to air fares offered online by the airlines that were
cheaper than those offered by Flight Centre (14 December 2016).
More...
In practice and courts, published reports
Have your say on the Australian Consumer
Law
The ACL review is being undertaken to establish whether the law has
been effective and how it can be improved to benefit traders and
consumers, without imposing unnecessary red tape.
The Australian Consumer Law Review
Interim Report is open and can be accessed at consumerlaw.gov.au.
Formal submissions and comments closed on 9 December 2016 ahead of
the final report in March 2017.
Senate Economics Committee receiving submissions on MMP
bill
The
Competition and Consumer Amendment (Misuse of Market Power)
Bill 2016 was referred to the Senate Economics Committee
on 1 December 2016. The Committee called for submissions which
closed on 9 January 2017. The Committee is due to report on 16
February 2017.
More...
Cases
Crescent Funds Management (Aust) Ltd v Crescent Capital
Partners Management Pty Limited [2017] FCAFC
2
TRADE PRACTICES – misleading and deceptive conduct claims
under the Australian Securities and Investments Commission Act
2001 (Cth) – companies engaged in financial services
industry – whether business names, domain names and business
activities sufficiently similar to be confusing and causative of
contravening conduct – distinction between classes of
consumer – distinction between sophisticated investors and
other investors – occupation of a common field of activity
– appeal dismissed.
TRADE PRACTICES – orders for injunction with disclaimer
– appropriateness of unqualified, permanent injunction
– appropriate exercise of discretion – appeal
dismissed. Australian Consumer Law (Schedule 2 of the
Competition and Consumer Act 2010 (Cth)) ss 18, 29.
Australian Competition and Consumer Commission v Valve
Corporation (No 7) [2016] FCA 1553
CONSUMER LAW – pecuniary penalties – concepts of
"common sense", causation, and contribution –
injunctions – disclosure and advertisement orders –
non-party consumer redress orders – compliance program
orders, Federal Court of Australia Act 1976 (Cth) ss 21,
43. Australian Consumer Law (Schedule 2 of the Competition and
Consumer Act 2010 (Cth)) ss 18, 18(1), 29, 29(1)(m), 54, 64,
224, 224(1), 224(2), 224(3), 232, 232(1), 232(4), 239, 246, 246(2),
247, 259(3), 262(1), 263(4); Ch 4; Pt 3-2, Pt 5-2; Div 1.
Australian Competition and Consumer Commission v Harrison
[2016] FCA 1543
CONSUMER LAW – unconscionable conduct in trade or commerce
– where respondents provided telecommunications services to
consumers – where respondents transferred customer contracts
from one company to another without the customer's consent
– where transferee company demanded payment of early
termination fee if customer wanted to terminate contract –
where transferee company referred matter to debt collection agency
or lawyers if customer did not pay – whether system of
conduct or pattern of behaviour – whether unconscionable
conduct in all the circumstances – whether respondents used
undue harassment or coercion – whether director was person
"involved" in contraventions.
Australian Competition and Consumer Commission v Lifestyle
Photographers Pty Ltd [2016] FCA 1538
CONSUMER LAW – sections 18, 21, 29(1), 48 of the Australian
Consumer Law – misleading and deceptive conduct,
unconscionable conduct, false or misleading representations about
goods, failure to specify a single price for goods – proposed
consent orders in relation to alleged contraventions – where
no statement of agreed facts.
CONSUMER LAW – contravention of sections 18, 21, 29(1), 48 of
the Australian Consumer Law – declarations, injunctions,
consequential relief, pecuniary penalty and publication orders
sought by the applicant – considerations relevant to the
fixing of penalties.
Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No
6) [2016] FCA 1534
CONSUMER LAW – misleading and deceptive conduct – where
applicant proceeded on the basis that the scope of works under the
proposed contract was reflected entirely in the tender drawings
issued – where respondent issued with revised and additional
drawings by its principal before it enters into contract with
applicant – whether failure to disclose revised and
additional drawings to the applicant is misleading and deceptive
conduct – where contract provided that further drawings may
be issued and applicant told variations were possible.
CONSUMER LAW – relief sought – where applicant seeks an
order varying contract so that a "cap" in the works
contract would be removed and the applicant would be entitled to be
compensated instead by reference to reasonable rates and prices
– whether order sought would compensate applicant for loss
and damage caused – whether order sought proportionate to
loss or damage suffered – where applicant claims it would
have not reduced tender price if it had known of variations –
where applicant claims it did not seek or undertake other work at
reasonable industry rates and prices because of respondent's
conduct – Australian Consumer Law, ss 237, 243.
TORTS – inducing a breach of contract – where applicant
claims to have entered a subcontract with a supplier – where
respondent terminated contract with applicant and contracted
directly with that supplier – consideration of elements of
cause of action – whether there was a contract between
applicant and supplier – whether respondent knew of that
contract – whether respondent induced or procured a breach of
that contract.
PRACTICE AND PROCEDURE – application to extend time to file
evidence – where applicant seeks to rely on a more detailed
expert report – where first expert report defective and
failed to set out reasoning – where deficiencies in report
and delay in application not the result of a deliberate tactic
– where application would not result in extended adjournment
– application allowed.
PRACTICE AND PROCEDURE – application to amend statement of
claim in relation to misleading or deceptive conduct claim –
where amendment would not cause embarrassment to respondent –
application allowed.
PRACTICE AND PROCEDURE – application to amend statement of
claim in relation to the claim in tort – where application
made at conclusion of trial – where amendment would prejudice
respondent – where proposed amendment could have been pursued
before trial – application refused.
PRACTICE AND PROCEDURE – application to amend defence to
withdraw admission – where admission inconsistent with
evidence – application allowed. EVIDENCE – where
applicant's witness produced schedules which show his estimates
of employee labour hours – where schedules not admissible as
a business record by reason of Evidence Act 1995 (Cth), s
69(3) – whether schedules admissible pursuant to Evidence
Act 1995 (Cth), s 29(4).
Australian Competition and Consumer Commission v Australia and
New Zealand Banking Group Limited [2016] FCA
1516
In accordance with the practice of the Federal Court in cases of
public interest, importance or complexity, the following summary
has been prepared to accompany the orders made today. This summary
is intended to assist in understanding the outcome of this
proceeding and is not a complete statement of the conclusions
reached by the Court.
On a number of occasions during 2011, Australia and New Zealand
Banking Group Limited and Macquarie Bank Limited, through the
actions of traders employed by them in their Singapore offices,
attempted to contravene s.44ZZRJ of the Competition and
Consumer Act 2010 (Cth). A corporation contravenes that
section if it makes a contract or arrangement, or arrives at an
understanding and the contract, arrangement or understanding
contains a cartel provision.
COMPETITION – contracts, arrangements or understandings
containing cartel provisions – where two major Australian
banks attempted to make arrangements involving the manipulation of
a financial benchmark and thereby the fixing of the price of
foreign exchange forward contracts – where the banks admitted
that they attempted to contravene s 44ZZRJ of the Competition
and Consumer Act 2010 (Cth) – pecuniary penalties under
s 76 of the Competition and Consumer Act 2010 (Cth)
– relevant principles – where the Australian
Competition and Consumer Commission and the banks proposed agreed
pecuniary penalties – relevant principles in determining
whether agreed penalties should be accepted –
Commonwealth v Director, Fair Work Building Industry
Inspectorate [2015] HCA 46 applied.
Australian Competition and Consumer Commission v Flight Centre
Travel Group Limited [2016] HCA 49
Appeal allowed. Trade practices – Restrictive trade practices
– Substantially lessening competition – Price fixing
– Where travel agent sold international airline tickets on
behalf of airlines – Where travel agent attempted to induce
airlines to agree not to discount price at which international
airline tickets offered directly to customers – Whether
travel agent acting as agent for airlines – Whether travel
agent and airlines "in competition" notwithstanding
travel agent supplied as agent for airlines – Trade
Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(3), 45A.
Trade practices – Restrictive trade practices – Market
definition – Relevance of "functional approach" to
market definition. Trade Practices Act 1974 (Cth), ss 4E,
45, 45A.
Commonwealth Bank of Australia v Kojic [2016] FCAFC
186
CONSUMER LAW – whether corporation engaged in unconscionable
conduct contrary to s.51AB or s.51AC of the Trade Practices Act
1974 (Cth) or Australian Securities and Investments
Commission Act 2001 (Cth) – approach to the assessment
of statutory proscriptions against unconscionable conduct –
whether unconscionable conduct requires a "high degree of
moral obloquy" – no unitary test for the application of
a statutory proscription of unconscionability – officers and
employees did not act unconscionably – corporation did not
act unconscionably.
CONSUMER LAW – whether knowledge of officers and employees
can be aggregated and attributed to a corporation for the purposes
of finding unconscionable conduct by a corporation – where
officers and employees did not individually act unconscionably
– analysis of Krakowski v Eurolynx Properties
Limited (1995) 183 CLR 563 – knowledge of employees
could not be aggregated to determine whether the corporation acted
unconscionably. Australian Consumer Law (Schedule 2 of the
Competition and Consumer Act 2010 (Cth)).
Australian Competition and Consumer Commission v Reckitt
Benckiser (Australia) Pty Ltd [2016] FCAFC
181
CONSUMER LAW – pecuniary penalty for infringement of
Australian Consumer Law – appropriate approach to assessment
and appellate review of civil penalty – relevance of mental
state to pleadings and assessment of penalty – appropriate
application of "course of conduct" principle –
re-exercise of penalty discretion. CONSUMER LAW – pecuniary
penalty for infringement of Australian Consumer Law – whether
primary judge erred in assessing loss or damage suffered by
consumers as a result of contravening conduct – whether
primary judge erred in assessment of causation – whether
primary judge erred in assessing types of harm suffered –
whether penalty manifestly inadequate. Australian Consumer Law
(Competition and Consumer Act 2010 (Cth) Sch 2) ss.18, 29, 33, 224,
228.
APS Satellite Pty Ltd (formerly known as "SkyMesh
Pty Ltd") v Ipstar Australia Pty Ltd [2016] NSWSC
1898
TRADE PRACTICES- Statute-Plaintiff sought recovery from the
Defendant pursuant to s.74B, s.74D, and s.74H of the Trade
Practices Act and s.54, s.55 and s.274 of the Australian Consumer
Law of the cost of service calls and replacement parts for a
satellite kit imported by the defendant - equipment said to be not
reasonably fit for purpose, not of merchantable quality, not of
acceptable quality. HELD: Plaintiff established that almost all of
the subject items were not functioning for reasons inherent with
the equipment and were therefore not fit for purpose, not of
merchantable quality, not of acceptable quality; issue of high
failure rate of equipment discussed; TRADE PRACTICES-Statute- Where
Plaintiff claimed it was forced by reason of the defective
equipment imported by defendant to engage additional support staff
to deal with the high number of complaints that resulted from the
defective goods resulting in a loss of money spent on wages HELD:
The factual basis for the claim not established; also the indemnity
provided for by s.74H is for cost or damage suffered by the
consumer for which the intermediate seller has compensated the
consumer and not the costs of the intermediate seller itself.
Plaintiff's claim rejected. TRADE PRACTICES- Statute
-Unconscionable conduct of supplier to internet service provider-
Plaintiff claims that a price increase imposed on it by defendant,
a satellite service provider, involved unconscionable conduct on
the part of the defendant in breach of s.21 and s.22 of the
Australian Consumer Law HELD: The Defendant had engaged in
unconscionable conduct principally by requiring the Plaintiff to
pay to it an amount equivalent to the defendant's assessment of
what it would cost to meet the statutory indemnity imposed by s.74H
and s.274 ACL, as a result of claims made by the Plaintiff on the
defendant for defective goods.
Bert
& Ors v Red 5 Limited & Anor [2016] QSC
302
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET
MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING,
DECEPTIVE OR UNCONSCIONABLE CONDUCT – where the first
defendant, a mining company, developed a gold mine in the
Philippines – where the company sought to raise capital, for
working capital and exploration purposes, through a private
placement of shares – where the plaintiffs claim the
company's chairman, the second defendant, represented to the
first plaintiff in a telephone conversation that the purpose of the
capital raise was to fund copper exploration – where the
plaintiffs were unable to participate in the private placement
– where the company's intentions for the use of the
capital being raised changed before the market reopened –
where the company disclosed that change of intention to the market
before it reopened – where the plaintiffs purchased a large
number of shares in the company after the market reopened –
where the price of those shares subsequently fell – whether
the second defendant made the alleged oral representations –
whether the defendant's conduct was misleading – whether
any misleading conduct caused the plaintiffs' loss.
CORPORATIONS – FINANCIAL SERVICES AND MARKETS –
DISCLOSURE – where a mining company planned to re-open an
open-pit gold mine which was covered by a lake – where the
company developed a plan to dewater the lake and to continually
dewater the pit over the life of the mine – where, after the
lake had been almost completely dewatered, higher than estimated
groundwater inflow was encountered – where the dewatering
system was still capable of dewatering the groundwater inflow and
rainfall – where the plaintiffs claim that if they had been
told about the significant quantities of groundwater inflow, they
would have sold their shareholding in the company and would not
have purchased further shares – where the price of the
company's shares subsequently fell – whether the company
was required, under its continuous disclosure obligations in the
Corporations Act 2001 (Cth) and the ASX Listing Rules, to
disclose to the market that there were significant quantities of
groundwater inflow into the mine – whether the company's
failure to disclose that information caused the plaintiffs'
loss.
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET
MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING,
DECEPTIVE OR UNCONSCIONABLE CONDUCT – where a mining company
planned to re-open an open-pit gold mine which was covered by a
lake – where the company developed a plan to dewater the lake
and to continually dewater the pit over the life of the mine
– where, after 99 per cent of the lake was removed, the
company disclosed to the market that dewatering was
"complete" – where the company had previously
disclosed that dewatering was a two stage process, comprising the
initial dewatering and then continuing dewatering of groundwater
and rainfall entering the pit – whether the company's
conduct was misleading or deceptive – whether any misleading
conduct by the company caused the plaintiffs' loss.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.